weapon against others in social, political, religious, and economic disputes. Law is
a means pure and simple, with the ends up for grabs.
Needless to say, this scenario is not what the promoters of the instrumental view
of law had in mind (although Holmes occasionally described law in such terms).
THE PROBLEM OF ENDS
What Holmes, Pound, and the realists objected to, as Llewellyn indicated, was
the prevailing mode of thought at the turn of the century that legal concepts and
principles consisted of logically prescribed, autonomous, largely predetermined
content, comprising an internally consistent, comprehensive body of law. Concep-
tual formalism kept the law in a frozen state that paid little heed to changes in
society and to the needs of society. Against this view, Holmes (1897: 469) argued
that āa body of law is more rational and more civilized when every rule it contains is
referred articulately and deļ¬nitely to an end which it subserves.ā Similarly, Pound
(1908: 605) declared that āas a means to an end, [law] must be judged by the results
it achieves, not by the niceties of its internal structure.ā Llewellyn (1931: 1236)
identiļ¬ed this major precept of the realist movement: āThe conception of law as a
means to social ends and not as an end in itself; so that any part needs constantly
to be examined for its purposes, and for its effect, and to be judged in the light of
both and of their relation to one another.ā
To say that law is an instrument to serve ends does not, in itself, indicate how
the appropriate social ends are to be speciļ¬ed. This is where social science came
into play in their thinking. Holmes (1899: 462) espoused a utilitarian approach
30 Brian Z. Tamanaha
facilitated by science: āI have had in mind an ultimate dependence upon science
because it is ļ¬nally for science to determine, so far as it can, the relative worth
of our different social ends.ā Pound held that competing social interests must be
aligned in a balance that maximizes the totality, although he never identiļ¬ed how
this was to be done. Llewellyn suggested that the question of āoughtā should be set
aside temporarily until we understand how law actually works. Most realists were
silent on the question of ends.
Early critics of the instrumental view of law recognized the evident problems
with determining appropriate ends. There are many ends in society, many of which
are not good, and many of which cannot be mutually reconciled. One critic wrote,
āPragmatism has been frequently criticized because it is in a sense anarchistic and
devoid of standards or principles. . . . It does not sufļ¬ce to shufļ¬‚e the mass of wants
and claims of the litigants into a confused pile and then give effect to as many of
them as we can in so far as harmony will permitā (Kennedy 1925: 69) In the minds
of many, furthermore, the suggestion that law is an instrument of coercive state
power with no built-in integrity brought U.S. law uncomfortably close to echoes
of Nazi law. The realists retreated in the face of this attack (Purcell 1973).
Well before the emergence of the realists, doubts about moral principles had
begun their inexorable march. The ultimate roots of these doubts trace back to the
sixteenth-century Reformation and the eighteenth-century Enlightenment, which
challenged the centuries-long dominance of Roman Catholicism and of tradition.
By the late nineteenth century, faith in objectivity, universal values, and absolute
truths was under siege. Philosophical pragmatism ā“ which Holmes imbibed as a
member of the Cambridge Metaphysical Club, and that Pound identiļ¬ed as an
inspiration for his instrumental view of law ā“ reļ¬‚ected this shift in thought. Non-
Euclidean geometry, Einsteinā™s theory of relativity, and Heisenbergā™s uncertainty
principle raised serious questions about the purportedly objective truths produced
in natural science. The realist Walter Wheeler Cook (1927: 306) surveyed these
developments in ideas to remark presciently, in 1927, āThe reign of relativity thus
inaugurated by the basic sciences, is destined to work a corresponding revolution,
deep, noiseless it may be, but inevitable, in all the views and institutions of man.ā
Although the realists were largely silenced by the end of the 1930s, their incisive
critiques of former understandings of the law continued to inļ¬‚uence legal thought.
The legal process school that emerged in the 1950s accepted and built upon the
notion that law is a means to an end. Legal process thinkers characterized courts,
legislatures, and administrative agencies as coordinate legal institutions, each with
its own unique strengths and limitations, and each engaged in a collaborative effort
to shape the law to serve common social purposes. Their manifest conļ¬dence that
common purposes could be worked out in law was a reļ¬‚ection of the consensus
view that saturated American intellectual thought and popular culture in the
golden 1950s. This consensus, however, was utterly shattered in the civil rights
and antiwar protests that rocked American society in the 1960s and 1970s. It
was an unprecedented period of turmoil: the assassinations of President John F.
Kennedy and his heir apparent, Robert Kennedy; the murders of Martin Luther
King Jr. and Malcolm X; political terrorism and bombings and bank heists; students
killed at Kent State and Jackson State universities; sexual revolution and drugs;
On the Instrumental View of Law in American Legal Culture 31
corruption of Watergate; and oil shortages and high inļ¬‚ation combined with high
unemployment and economic stagnation.
Law was caught up in the middle of this social schism, castigated from all sides.
People on the Left saw law too often line up on the side of power and privilege,
answering peaceful marches and sit-ins with police brandishing nightsticks and
snapping dogs. People on the Right thought that deļ¬ant public displays of civil
disobedience, encouraged by the meek response of law enforcement, undermined
social order. Progressives cheered the Warren Court as the one legal institution
doing the right thing, while conservatives despised the Court as activist usurpers
who were writing their own personal liberal views into the Constitution. Observers
thought it evident that a crisis of legal liberalism was at hand.
By the beginning of the 1970s, the two aspects of the core dynamic identiļ¬ed
earlier ā“ an instrumental view of law coexisting with a loss of faith in the common
good (or in our ability to agree upon it) ā“ were set in place. Both were noted in
the legal literature at the time. The dean of Cornell Law School, Roger Cramton,
wrote that legal instrumentalism had become āthe ordinary religion of the law
school classroom. Law today tends to be viewed in solely instrumental terms and
as lacking values of its own.ā Law professors convey to students āan instrumental
approach to law and lawyering,ā along with āa skeptical attitude toward generaliza-
tions, principles, and received wisdomā (Cramton 1978: 248). The legal historian
G. Edward White, in 1973, remarked upon the evident widespread skepticism.
Critics of government were ālinked in their perception that terms such as ā˜pub-
lic interestā™ and ā˜social welfareā™ have lost their meaning: the terms are capable of
such wide, divergent, and contradictory interpretations that they are useless as
standards of performanceā (White 1973: 295). In the 1979 Duke Law Journal, the
legal theorist Arthur Leff (1979: 1240) lamented the apparently insurmountable
problems in law generated by the realization that ā[t]here is no such thing as an
unchallengeable evaluative systemā (emphasis in original).
No one would think to utter these observations today, because we take for
granted the instrumental view of law and skepticism about the public good and
moral values. At the time, however, they were the subject of commentary because
they were recognized as novel ā“ although they had been gestating for generations ā“
and worrisome. The legal historian Calvin Woodward, in 1968 (735), contrasted
the spreading instrumental view of law with previous noninstrumental views,
concluding his essay by asking: ādoes the [Realist] approach not teach all manner
of men to look to law as an instrument for their private or personal disposal?ā
THE PERVASIVENESS OF INSTRUMENTAL VIEWS OF LAW TODAY
We are so thoroughly inļ¬‚uenced by this understanding that is unnecessary to
detail the pervasiveness of the instrumental view today. I will merely list various
ways in which instrumentalism courses through American legal culture. As already
indicated, law professors teach law students to understand and treat legal rules and
processes in instrumental terms. As Llewellyn put it (1960: 84), law students are
taught to āanalyze coldly, to see, and to see only, and manipulate the machinery of
law.ā This instrumental approach to law also pervades the practice of law. Lawyers
32 Brian Z. Tamanaha
routinely treat the law instrumentally to serve the interests of their clients, to serve
their own economic interests, or to serve the causes they attempt to advance.
Robert Gordon (1988: 20) describes this instrumental mind-set toward lawyering:
Lawyers āmay, and if it will serve their clientsā™ interests must, exploit any gap,
ambiguity, technicality, or loophole, any non-obviously-and-totally-implausible
interpretation of the law or facts.ā It is not the case (nor did Gordon contend) that
all lawyers take this attitude all the time, but many do much of the time.
An instrumental understanding of law also pervades contemporary legal the-
ory, occupying a central place in law and economics, in critical theory, in law and
society studies, in legal pragmatism, and in the notion of the rule of law. āPart
of the power of economic analysis is that it presents a largely instrumental approach
to law . . . ; it forces the question, do these legal rules achieve the objectives at which
they aim, and would alternative do any betterā (Bix 2004: 190). The invitation
to the inaugural critical legal studies conference (in 1977) declared that ālaw is
an instrument of social, economic, and political domination.ā Critical feminism
views law as an instrument of male domination; critical race theory views it as
an instrument of racial domination. Law-and-society studies characterize law as
instrumental in a multitude of different respects. Legal pragmatism promotes an
avowedly instrumental approach to judicial decision making. The most inļ¬‚uen-
tial theoretical account of the rule of law, articulated by Joseph Raz (1979: 226),
construes law in purely instrumental terms: āLike other instruments, the law has a
speciļ¬c virtue which is morally neutral in being neutral as to the end to which the
instrument is put.ā
Modern cause litigation ā“ which took off in the 1960s and 1970s ā“ perceives and
utilizes law in entirely instrumental terms. As one cause lawyer put it, āThe law has
always been an instrument of change, of course, but in recent years it has become,
through the deliberate, indeed passionate, efforts of a new breed of lawyer-activists,
a favored engine of changeā (Stoddard 1997: 263).
Judges and judging are also seen in increasingly instrumental terms ā“ in two
different senses. A great deal of judging, common law and statutory, explicitly
considers social consequences and aims to achieve social policies. Constitutional
decision making regularly engages in balancing competing interests to achieve an
optimal end. But these modes of judging take place amid widespread suspicions
that judgesā™ determinations about proper social policy and optimal balancing are
inevitably colored by their personal values. Consequently, at both the state and
federal levels, competing groups and interests engage in often vicious campaigns
to seat judges who share their ideological views, in the hope that the judges will
instrumentally interpret the law to advance the goals they desire.
Legislation and administrative regulation have long been viewed instrumentally,
so in this respect no real change has taken place. Critics have for at least two
centuries charged that legislation is subject to capture and instrumental utilization
by special interests ā“ a commonplace complaint today (fueled by reports of the
corruption of congresspeople, members of their staff, and administrative ofļ¬cials
who exchange ofļ¬cial legal actions for money and favors). What has changed that
is that previously noninstrumental views of law still substantially held sway, at least
among the legal elite (judges, scholars, and leaders of the bar), whereas presently
On the Instrumental View of Law in American Legal Culture 33
the entire legal culture has come over to a consummately instrumental view.
Now instrumentalism permeates every aspect of law. Remaining noninstrumental
understandings of and approaches to law continue to circulate, but they have
been shunted to the margins as the instrumental view sweeps through the legal
WHERE WE ARE NOW
If law is nothing but an instrument of coercive state power, and if we cannot
agree about the common good, then it makes sense that competing groups and
individuals would strive to seize the law and use it to further their own interests
or wield it as a weapon against others. Even those who would prefer to abstain
from this contest over and through law might be forced to engage, if only defen-
sively, to keep the power of the law out of the hands of less restrained opponents.
The contemporary situation is marked by systematic efforts to control and wield
the law: through careful ideological screening of prospective judges; by funneling
huge sums to pliable legislators who will enact desired legislation; by securing the
appointment of lobbyists to administrative positions who will then implement
favorable regulatory regimes and actions; by stafļ¬ng law enforcement agencies like
the Justice Department with ideologically motivated individuals; and by aggres-
sively bringing provocative lawsuits before judges perceived as friendly to the same
There have always been battles over and through law, to be sure, and law has
always been utilized instrumentally, notwithstanding the previously prevailing
noninstrumental characterizations of law. One might argue, therefore, that adop-
tion of an explicitly instrumental view of law has the salutary effect of bringing
this reality out in the open for everyone to see. Perhaps, but one must also con-
sider what has been lost. Former noninstrumental views insisted that law has a
built-in core of integrity. This belief about law exercised a constraining effect, at
least to some degree, in that legal actions had to be plausibly justiļ¬ed in terms
consistent with this belief. Now law is seen as an empty vessel that can be utilized
instrumentally to serve whatever ends prevail in various contests ā“ litigation, elec-
tions, legislative or administrative proceedings ā“ after which winners get the legal
spoils. In this manner, the purely instrumental view may have rendered law even
more subservient to powerful interests, which are better armed to engage in these
Unlike Llewellyn, I will not close with a prediction about the future. Too much
is uncertain to know what the next stage will bring, although my sense is that we
are likely to remain mired where we are for some time. What I can assert with
conļ¬dence is that, for the reasons articulated in this essay, American legal culture
is in a hazardous state with no evident way out.
Bix, Brian. Jurisprudence: Theory and Context. Durham, NC: Carolina Academic Press, 2004.
Cook, Walter Wheeler. āScientiļ¬c Method and the Law,ā A.B.A. J. 13.6 (1927): 303ā“9.
34 Brian Z. Tamanaha
Cramton, Roger C. āThe Ordinary Religion of the Law School Classroom,ā J. Legal Educ.
29.3 (1978): 247ā“63.
Gordon, Robert W. āThe Independence of Lawyers,ā B.U. L. Rev. 68.1 (1988): 1ā“83.
Holmes, Oliver Wendell. āLaw in Science and Science in Law,ā Harv. L. Rev. 12.7 (1899):
. āThe Path of the Law,ā Harv. L. Rev. 10.8 (1897): 457ā“78.
Kennedy, Walter B. āPragmatism as a Philosophy of Law,ā Marq. L. Rev. 9.2 (1925): 63ā“77.
Leff, Arthur Allen. āUnspeakable Ethics, Unnatural Law,ā Duke L.J. 1979.6 (1979): 1229ā“49.
Llewellyn, Karl N. The Bramble Bush: On Our Law and Its Study. Dobbs Ferry, NY: Oceana
. āOn Philosophy in American Law,ā U. Pa. L. Rev. 82.3 (1934): 205ā“12.
. āSome Realism about Realism ā“ Responding to Dean Pound.ā Harv. L. Rev. 44.8
Moore, Michael S. āThe Need for a Theory of Legal Theories: Assessing Pragmatic Instru-
mentalism.ā Cornell L. Rev. 69.5 (1984): 988ā“1013.
Pound, Roscoe. āMechanical Jurisprudence.ā Colum. L. Rev. 8.8 (1908): 605ā“23.
Purcell, Edmund. The Crisis of Democratic Theory: Scientiļ¬c Natural and the Problem of
Value. Lexington: Univ. of Kentucky Press, 1973.
Raz, Joseph. The Authority of Law. Oxford, UK: Clarendon Press, 1979.
Stoddard, Thomas R. āBleeding Heart: Reļ¬‚ections on Using the Law to Make Social Change.ā
N.Y.U. L. Rev. 72.5 (1997): 967ā“91.
Summers, Robert. Instrumentalism and American Legal Theory. Ithaca, NY: Cornell Univ.
Tamanaha, Brian Z. Law as a Means to an End: Threat to the Rule of Law. New York:
Cambridge Univ. Press, 2006.
White, G. Edward. āThe Evolution of Reasoned Elaboration: Jurisprudential Criticism and
Social Change.ā Va. L. Rev. 59.2 (1973): 279ā“302.
Woodward, Calvin. āThe Limits of Legal Realism: An Historical Perspective.ā Va. L. Rev.
54.4 (1968): 689ā“739.
5 When Things Went Terribly, Terribly Wrong
steven l. winter
It is the kind of thing that, like aging, catches you unawares even as it happens
in plain sight. You look up and the landscape of your face, your town, your
profession has changed. One minute everyone is talking about paradigm shifts
and the next thing you know theyā™re back practicing phrenology (Schlag 1997).
I remember the moment when the realization struck. It was the mid-1990s. A
colleague on appointments asked me to read a manuscript forthcoming in one
of the top journals. The committee was interested in the author as a potential
lateral and wanted to move before the market got hot. The piece, something on
criminal procedure written from a liberal perspective, was one I would naturally be
sympathetic to. Halfway through I stopped in disbelief. It wasnā™t that the argument
was wrong so much as that there was none: The piece exempliļ¬ed Llewellynā™s
admonition: āDoctrine brittle and neat is the tool of tender minds in pursuit of
policy that can be embraced without using oneā™s intellectā (Twining 1973:116).
Who, I wondered as I checked the proud citation on the ļ¬rst page, is publishing
this? āOh, right, Harvard.ā I later recounted the incident over lunch with a friend
known for his efforts to reshape the academy in more intellectual directions. āWhen
I entered the academy ten years ago, you could pick up any of the top law reviews
and always ļ¬nd some really interesting piece on Hegel, deconstruction, or literary
theory. Now, itā™s all law and economics or boring doctrinalism.ā He looked down
at his plate sadly, not uttering a word.
I was raised on the grand narrative in which legal realism defeated Langdellian
formalism, replacing empty doctrinalism with a careful legal craft founded on
functionalist interpretation and robust policy argument. By the time I entered
the academy in the mid-1980s, critical legal studies had called into question this
postrealist complacency. Its law-is-politics and indeterminacy critiques challenged
as yet more mystiļ¬cations the purposive reasoning and balancing of competing
interests characteristic of mainstream judicial decision making. Excesses aside
(Winter 2001b; 1990), critical legal studies produced several sophisticated critiques
of lawā™s pretension to neutrality and objectivity, not least of which was a devastating
reinvigoration of the legal realist critique of legal rules as insufļ¬cient to determine
outcomes. By decadeā™s end, even Judge Posner (1990: 48) seemed to embrace
a Llewellynesque understanding of effective legal rules as those driven by ālay
intuitions about right behavior.ā
| 35 |
36 Steven L. Winter
And then things went terribly, terribly wrong. It would, no doubt, be an over-
simpliļ¬cation to say that the collapse of the Soviet Union set jurisprudence back a
century. Still, it would not be entirely wrong. The 1990s witnessed a thriving cot-
tage industry in which American legal academics traveled to the former communist
countries of Central and Eastern Europe (as well as South Africa) to advise them
on their transition to democracy and market economies. These experts tended to
stress American-style constitutional government complete with judicial review. By
and large, they also championed clear, enforceable rules of property and contract
as necessary preconditions of free markets and as essential elements of democracy
and the rule of law. In both instances, their advice presupposed a rule formalism of
precisely the sort called into question by twentieth-century jurisprudence. In both
instances, the advice was also at odds with some of the most profound lessons of
their respective disciplines.
Consider, ļ¬rst, the dogma about clear rules of property and contract. It rests
on the premise that predictability is important to economic actors and, therefore,
conducive to stable and efļ¬cient markets. But the dogma about clear rules of
property and contract cannot be derived from this premise, however unassailable,
for at least two reasons.
First, it cannot be that predictability per se is a necessary precondition of markets:
after all, nothing is more notoriously unpredictable than a market, yet nobody
thinks the existence of markets inimical to the formation of market economies.
Markets, in fact, are extremely dynamic mechanisms for managing unpredictability
(which is exactly what makes them superior to command-and-control forms of
economic organization). The predictability thought necessary for markets must,
therefore, refer to the reliability of oneā™s expectations that other market actors will
follow through on their bargains. The claim about the necessity of clear, enforceable
rules of property and contract is really a claim that only a rule-governed regime
can provide the reliability of performance necessary for markets to function. It is,
in other words, a claim not about markets but about human behavior. As such, it
is demonstrably false.
The reliability necessary for markets may be provided by the cultural factors
reļ¬‚ected in the rule-of-law ideal, but as a historical and sociological matter many
other cultural factors can also provide it. Ellickson (1986) documented how parties
in a small cattle-ranching community effectively regulate their economic relations
through informal norms. Various scholars (Bernstein 1992; Landa 1994; Richman
2006) have studied how the extralegal communal norms of ethnic or religious
groups provide a comparative advantage that enables them to conduct commerce
more efļ¬ciently because of lower transaction costs. The best known of these studies
concern Orthodox Jews in the diamond trade. But, for those familiar with Jewish
history, this is but a footnote to an old story. For four or ļ¬ve centuries before the
Crusades, Jewish merchants held a virtual monopoly on trade among Christian
Europe, the Muslim Middle East, and Asia. Two cultural factors enabled this
monopoly: (1) a network of Jewish communities stretching from Spain to China,
which provided the support and succor that made otherwise-hazardous travel
possible, and (2) a system of ļ¬nancial instruments analogous to the modern letter
of credit that made it possible to travel and conduct commerce without carrying
When Things Went Terribly, Terribly Wrong 37
hard currency. The use of these ļ¬nancial instruments dated from at least Roman
times and was later codiļ¬ed in the Talmudic law of promissory notes. The system
was enforced entirely by implicit community sanction and made international
trade possible on an unprecedented scale (Agus 1965; Gil 1976; Rabinowitz 1948).
One might argue that clear rules of property and contract are necessary to
ensure performance in a heterogeneous liberal society. If true, it would be strange,
self-obsessed advice to press on other societies with very different demographics,
cultures, and institutions. But the argument faces a more profound problem. The
conventional notion of rules as clear and predictable rests on an unexamined
circularity. Because most human categorization is not categorical, rules per se are
unavoidably indeļ¬nite. The observed predictability of a rule is, as suggested earlier,
a function of the degree to which it reļ¬‚ects the categories, concepts, and social
practices that deļ¬ne the social expectations of those whose behavior it purports to
govern. Clear rules of property and contract can provide predictability only within
the kind of stable cultural context that renders them largely superļ¬‚uous (Winter
Second, there is an odd disconnect between the dogma of clear rules and the
implications of the Coase Theorem. Coaseā™s (1960) basic point is that, in the
absence of transaction costs, parties will bargain among themselves to achieve
the optimal set of distributions. This means the following: (1) that the initial
assignment of a property right in a resource will not determine its ultimate use,
and (2) that markets are better mechanisms for regulating and adjusting behavior
than are legal liability rules. It is hard to get from that insight to the claim that
rules of property and contract are necessary for the existence of markets. Quite the
contrary. Coaseā™s whole point is that markets are more efļ¬cient than the existing
It will be recalled that Coaseā™s principal examples of inefļ¬cient ā“ and concep-
tually indefensible ā“ liability rules came from the law of nuisance: arguing that
the railroadā™s laying track near the farmerā™s wheat ļ¬eld was no more the cause
of the ļ¬re (subsequently ignited by a spark from a passing engine) than was the
farmerā™s having planted the wheat near the train tracks, he pointed out that who-
ever was engaged in the economically more productive use would bargain with
the other to refrain from the competing use. But the same will be true across the
entire spectrum of basic rules of property and contract. Kennedy and Michelman
(1980) have argued that, in the absence of transaction costs, there is no reason in
economic theory to prefer a private property regime to a state of nature. Even laws
against theft would be unnecessary; as long as the possessor values the property
more than the thief, the two can always strike a bargain in which the possessor
pays the would-be thief to desist. Consider their example of two people stranded
on a desert island. The industrious castaway cultivates a small coconut plantation
by day while the indolent one steals coconuts by night. The farmer responds by
building fences and snare pits to deter the thief. But these time-consuming efforts
eventually mean that his coconut crop drops 10 percent as a result of neglect. So the
farmer offers the thief 5 percent of the yield if only he stops stealing. Both parties
will be better off. One might think that, without background norms of possession
and performance, the thief can always agree, receive his free coconuts, and then
38 Steven L. Winter
return to stealing an additional 5 percent. But if he does, the farmer will return to
making snare pits. Both have adequate incentive to honor their bargain without
the external constraint of abstract rules of property and contract.
Taking Coase to the limit of his logic, the background norms of possession
and performance should be bargained away in a near-perfect market. Suppose the
railroad mentioned previously has been paying the farmer not to plant wheat. A
parasite emerges that wipes out much of the worldā™s wheat supply. Because wheat
is now more valuable than train travel, the farmer should renegotiate with the
railroad to pay it to refrain from using its tracks. To insist on the prior bargain in
this context would be to entrench the economically inefļ¬cient use. Moreover, the
very existence of an enforceable contract right would give the railroad a strategic
edge that would lead to rent-seeking behavior reļ¬‚ected in a higher, inefļ¬cient price.
There are, of course, always transaction costs. It might be argued that clear
rules of property and contract are necessary to approximate what a frictionless
market would produce. But it is difļ¬cult to see exactly how. The ability of legal
rules to mirror market outcomes is one of the issues that Coaseā™s critique calls
into question. The conceptual element of the critique is the same as the earlier